Realtors pan bill changing dual agent disclosure

Posted: Sunday, April 20, 2003

ANCHORAGE (AP) -- A bill that would change disclosure requirements when one agent or brokerage represents both the buyer and seller in a real estate transaction has drawn sharp criticism from some members of the industry.

The bill, introduced by Rep. Norman Rokeberg, R-Anchorage, would change a law that says as soon as an agent or brokerage firm is aware they represent both a buyer and a seller, they must obtain written consent from both parties to act as a ''dual agent.''

Dual agents also are forbidden to reveal any information that could hurt the bargaining power of either the seller or the buyer.

Rokeberg's bill would exempt commercial real estate deals from the requirements. It also would limit liability in all cases, commercial and residential, where an agent failed to make such disclosure in a timely fashion. That would effectively stop any pending lawsuit that has not received a final judgment.

Rokeberg said the disclosure requirements are unnecessary for commercial transactions because the parties involved usually are more sophisticated than home buyers.

At the same time, Rokeberg, himself a licensed independent real estate agent, argued that his bill would protect against lawsuits that he said only enrich the legal profession.

''This is an anti-lawyer bill and has nothing to do with consumer protection,'' Rokeberg said.

The bill's opponents say it would be bad for the industry and is meant specifically to protect Anchorage-based Prudential Vista and Prudential Jack White.

Prudential Jack White settled one dual agent lawsuit last summer. Prudential Vista faces a separate one that could become a class action.

The bill takes away the right to sue if an agent or brokerage does not make a dual agent disclosure as soon as they are aware of it. But it would not stop lawsuits in cases where the violation constitutes fraud, misrepresentation or deceit, and the person suffered a loss as a result.

Howard Trickey, an attorney for Prudential Vista, testified in favor of the bill at a hearing Monday, arguing that it would only affect suits based on ''technical violations.''

''This amendment would protect from frivolous lawsuits where there's no harm or damage done to anyone in the transaction and the only claim is that there was a failure to make a timely record of the disclosure,'' he said.

Attorney Robert Wagstaff, who last year won a dual agent case against agent Bonnie Mehner and Prudential Jack White, said the primary purpose of Rokeberg's bill is to eliminate a separate suit he filed against Prudential Vista in September.

''They have no defense because they've admitted that this is what they've done, and their only hope is to get the Legislature to pass some special law to give them immunity,'' Wagstaff said. ''It's simply a special interest bill that has no interest to the public.''

The new suit alleges that neither the buyers nor the seller of a $46,900 recreation property near Shirley Lake in Mat-Su knew that Prudential Vista was on both sides of the deal until much later in the purchase process than state law allows.

The Alaska Association of Realtors opposes the bill, and many of its members voiced their opposition to the bill Monday.

The group, which represents both residential and commercial brokers, has been working on a separate, more comprehensive revamp of the state's real estate agency laws.

Rokeberg has been working with them for the past 2 1/2 years. He said he introduced his bill because they were taking too long. He called his bill an interim measure until the larger bill is finished.

PeggyAnn McConnochie, a commercial real estate agent at ACH Consulting in Juneau, said Rokeberg's proposal would be bad for the profession's image.

She also disagreed with the bill's definition of commercial transactions. Specifically, the bill exempts real estate that contains a building with four or more separate living units; has a purchase price of $100,000 or more in value for nonresidential use; or has a gross lease revenue that exceeds $12,000 a year.

''The gauges for when one enters into a commercial transaction are unrealistically low,'' McConnochie said.

The Association of Realtors expects to have its bill finished by the end of this month, McConnochie said.

Rokeberg's bill passed out of the House Labor and Commerce Committee and has been sent to the Judiciary Committee.